Statutory guidance for organisations which work with and support children and young people who have special educational needs or disabilities

Permanent Exclusion

Permanent Exclusion

Permanent exclusion is the most serious sanction a school can give if a child does something that is against the school’s behaviour policy (the school rules). It means that the child is no longer allowed to attend the school and their name will be removed from the school roll. Permanent exclusion should only be used as a last resort.

Understanding the decision to exclude

There are guidelines about what should be taken into account before excluding a child. This section will help you understand a bit more about exclusions and the process that should be followed

Who can exclude?

Only the headteacher has the power to exclude your child. Other members of staff such as heads of year cannot exclude, though they may provide information to support the head’s decision.

Reasons for exclusion

All exclusions must be for disciplinary reasons only. All schools must have a behaviour policy setting out what the school rules are and this must be published on the school website. Schools vary in what they will permanently exclude for. However permanent exclusion should only happen:

in response to a serious one-off breach or persistent breaches of the school’s behaviour policy and

where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school

In practice this means that there are two likely scenarios for a permanent exclusion

your child has had a history of persistent disruptive behaviour and the school feel they cannot do anymore.

your child has committed a single serious one-off offence, even if they have never been in trouble before. That might be something like assaulting a pupil or member of staff or bringing a knife or drugs into school. However it is up to each school to define what counts as a serious offence.

Standard of proof

The head’s decision to exclude must be taken on the ‘balance of probabilities’. That means that it is more likely than not that the pupil did what they are accused of. This is not the same as the ‘beyond reasonable doubt’ standard required in a criminal case.

When exclusion is not allowed

It is unlawful to extend or lengthen an exclusion for a non-disciplinary reason such as:

if your child has special educational needs and the school say it can’t meet those needs. It should look at putting more or different support in place instead.

if your child is not doing well in school or is not as able as other children. A child cannot be excluded because they are not likely to get good exam results.

because of something you have done as a parent. That might be something like making a complaint or not going to a meeting at school.

not allowing a child back into school after a fixed period exclusion unless they meet particular conditions. Once the exclusion is ended your child must be allowed to go back. For example the head teacher can’t extend the exclusion because your child won’t admit they are guilty.

Behaviour outside school

Pupils can be excluded for behaviour outside school, this may include behaviour on school trips, on the way to and from school and behaviour which may bring the school into disrepute. Cyber-bullying which takes place out of school may also lead to an exclusion.

Having a say

Where practical, a head teacher should allow a pupil to present their case before deciding whether to exclude. If this hasn’t happened, find out your child’s version of what happened and send this into school yourself.

Unofficial exclusions

Sometimes schools may ask parents to keep their child at home without excluding them. This is often portrayed as doing the parent and child a favour by not making it official. This is not lawful, even if you agree to it. If the head teacher does not want your child in school for disciplinary reasons they must go through the formal exclusions process.

Unofficial exclusions can easily lead to a child missing considerable amounts of education or even dropping out of the system altogether. It also means that you lose your rights to make representations to the governors or to attend a meeting.

Children should not be asked to stay at home because the school can't provide for their special educational needs or to get them out of the way during an inspection. If this happens, remind the school that this amounts to an unlawful unofficial exclusion. You may also wish to tell the exclusions officer in your local authority that this is happening.

Children with SEN or disabilities

Sometimes children with special educational needs can show poor behaviour because they are feeling frustrated in their learning. They may also have emotional difficulties or a disability which affects the way they behave.

Before excluding a child with SEN, the school should look first at what additional support is needed or whether a different school would be more suitable.

If your child has an Education Health Care (EHC) Plan then the school should consider bringing forward the annual review or holding an emergency interim review.

Headteachers should, as far as possible, avoid permanently excluding children with EHC plans.

Other factors affecting the exclusion

Before deciding to exclude head teachers should take account of factors that may have affected the child’s behaviour. These might be:

bullying

mental health issues

bereavement

unidentified SEN

Alternatives to exclusion and early intervention

Where children are at risk of exclusion, schools should look at early intervention to address the underlying causes of the poor behaviour.

If a child shows persistent disruptive behaviour, heads should consider a multi-agency assessment. This may pick up unidentified special educational needs but also wider family issues affecting the child. A multidisciplinary assessment may be carried out under the Common Assessment Framework. This is commonly known as a CAF assessment but may be called something different in your local authority. It provides an opportunity for different agencies and services involved with a child to share information, identify needs and agree any actions.

Vulnerable groups

Some groups are overrepresented in exclusion statistics. These include children with SEN, children eligible for free school meals, children from particular racial groups and looked after children. Headteachers should look at providing extra support to these groups to try to reduce the risk of exclusion.

Looked after children

Schools should work together with foster carers, children’s homes and the local authority that looks after the child to try to avoid exclusion. This might include putting in additional support or looking at whether a different school would be more suitable. If you are a foster carer you have the same rights in education law as other parents if the child you look after is excluded.

What happens during the exclusion

This section explains what happens once your child is permanently excluded and what the options are for their future education.

What the school must tell you

If your child is permanently excluded, you must be notified in writing without delay.

The letter must tell you:

the reason for the exclusion

the fact that it is permanent

the right to put your views in writing to the governing body

your right to go to a meeting of the governing body and put your views in person

If your child is of compulsory school age, you must also be told about your responsibilities to keep them at home during the first five days of the exclusion.

If you haven’t had a letter by the end of the first day of exclusion, you should contact the school to check that your child has been formally excluded. You could remind the school that informal exclusions are not allowed.

This may be an opportunity to negotiate with the school for an alternative such as a fixed period exclusion or a managed move to another school.

Keeping your child at home

The first five days

Even though your child is not allowed on the school site, they still should be receiving education. Schools should take reasonable steps to set and mark work for the first five days of any exclusion. If no work has been sent home, contact the school and ask for some. Many schools have work available to pupils on the school website. Any work set should be accessible and achievable to pupils outside school.

During these five days you are responsible for your child’s whereabouts. You must make sure they are not in a public place without reasonable justification during school hours. This duty is similar to that on school attendance and you could be fined if you breach it. The fine is £60 and goes up to £120 pounds if you do not pay within 28 days. Failure to pay within 42 days could lead to prosecution.

Alternative education

Day six and beyond

If your child has been permanently excluded, the local authority has a duty to provide suitable full-time alternative education from day 6. This is most likely to take place at a pupil referral unit or other alternative provision.

If your child has an EHC plan, the alternative provision must be able to meet the child’s needs as set out in EHC plan. The placement must be identified in consultation with parents.

For looked after children it is recommended that alternative educational provision start from the first day of an exclusion.

Local authorities do not have to provide alternative education for children who are below or above compulsory school age.

Finding a new school

Your child’s future education

Initially your child will probably be given a place in a pupil referral unit or other alternative provision. You may be happy for them to remain there for a while so their needs can be assessed or you may wish to try to find a place in a new school as soon as possible.

Fair access protocol

The fair access protocol (FAP) is a local agreement for getting children without a school place back into school as quickly as possible. The protocol must also cover provision for children who are not yet ready to go back into mainstream schooling. Permanently excluded children will be covered by this. Children can be placed under the FAP even if a school is full.

Applying for a school yourself

You can also apply for a school yourself under the normal admissions system and in most cases appeal if the school is full. See the ACE booklets on ‘Applying for a school’ and ‘Appealing for a school’.

There are some cases when a school may refuse admission even if it has places available. These are:

twice permanently excluded children within two years of the last exclusion

children with challenging behaviour making in-year admissions. Schools must refer this to the local authority to be dealt with under FAP.

Children with Education Health Care Plans

If your child has an EHC plan, the LA will need to change the name of the school after a permanent exclusion. You have a right of appeal if you disagree and want a different school. See the ACE booklet ‘Getting the EHC Plan right’.

Challenging the Exclusion

In this section you can find out how to challenge the decision to permanently exclude your child.

Negotiating with the school

If the exclusion is not officially permanent or if you think the head may be persuaded to withdraw it, you could negotiate for an alternative.

Ask for a meeting with the head to discuss this. Before the meeting think carefully about what might be best for your child. You could ask for:

a managed move to another school

for young people aged 14-16, a flexible curriculum or alternative provision

additional support for your child

If it is a one off offence and your child has not otherwise been in trouble, then a letter from the young person asking to be given another chance may help.

However it’s important to understand that the head does not have to change their decision even if you think it is wrong or unfair. You should then concentrate on making a good case to the governing body.

The governors review the exclusion

What rights do you have?

Responsibility for reviewing exclusions lies with the governors of the school. This may be delegated to a subcommittee which may be called the discipline committee. The subcommittee must have at least 3 members.

The governors must be informed of a permanent exclusion without delay. They must meet within 15 school days to consider the exclusion.

You as a parent must be invited to attend the meeting and put forward your views. You have a right to be represented and also to take a friend with you.

If the governors decide not to reinstate your child in school you may ask for their decision to be reviewed by an Independent Review Panel (IRP). The IRP does not have the power to reinstate your child but may direct the governors to look at their decision again.

Useful Documents

There are a number of documents that may be useful to you if you are challenging your child’s exclusion:

the school SEN policy (if your child has SEN which may be relevant to the exclusion)

your child’s school record – you need request this in writing. The school may charge for making a copy but you may look at the record free of charge.

incident report and witness statements – the school should have compiled a report of the incident and may have taken witness statements from the pupils involved

If you are planning to challenge the exclusion, request these in writing from the school straight away.

Preparing your case

This section will help you put forward your views to the governors. It is sensible to do this in writing even if you will be meeting them in person. Keep copies of all letters and emails.

It is fairly rare for governors to overturn a head teacher’s decision to permanently exclude a child. You will need to convince them that the decision to exclude your child permanently was not lawful, reasonable or fair. Make sure you have read section 1 of this guide so you understand the rules around exclusions.

Procedures

Check that the school has followed the proper procedures in accordance with the guidance. Was it the head who excluded the child?

Were you notified in writing without delay? Did the letter give reasons for the exclusion?

Lawful?

What reasons are given for the exclusion? Are these genuine disciplinary reasons? See above - When exclusion is not allowed for a list of invalid reasons.

Has your child committed a single serious breach of the school's behaviour policy? This could be something like seriously assaulting a teacher or another child or bringing a knife or drugs into school.

or

Has your child been repeatedly in trouble in school? Have they persistently done things that are against the school's behaviour policy?

Check the school's behaviour policy.

Evidence

If you think that your child did not do what they are accused of or were not involved to the extent the school says, then you will need to consider the evidence very carefully.

Remember that the standard of proof for an exclusion is that it is more probable than not that your child did it.

Talk to your child about what happened. It is sensible to do this as soon as possible. Try to get them to focus on the facts of the incident. You may wish to ask some direct questions such as

show me exactly where you were

who else was in the room?

did any other staff see what happened?

did anything lead up to it?

Your child’s school record, the incident report and any witness statements will be useful here. Do they reflect your child's view of events? Are there differences between the statements? Highlight any inaccuracies. Are there important people who were not asked for a statement? If so you could ask the school to get their views

Has your child been in trouble before? Is it likely that they would behave in this way?

Sometimes children with an otherwise good record do get caught up in misbehaviour and do something silly. Teenagers in particular do not always think through the consequences of their actions.

Effect on other people in the school

The second condition for permanent exclusion is that allowing your child to remain in school would be harmful to the education or welfare of others in the school? Think about the effect your child has on other children. Are they seriously disrupting the class? Are they a risk to other children or staff? If it’s a one off serious offence, how likely is it that it will happen again?

Fair?

Look at the school's behaviour policy. What do they say about behaviour of this type? Do they generally exclude for this offence? Does the policy say something different to what has happened to your child? Are they applying their behaviour policy consistently? If other children were involved in the incident, how were they treated? Were they given the same punishment?

Factors affecting your child

Was your child affected by anything going on at home or at school? This could be a family bereavement or divorce or bullying at school. Was this something you told the school about?

If your child has been bullied, was the school’s anti-bullying policy followed? Have you raised concerns with the school before?

Support for your child

If your child has been having ongoing problems with behaviour, has the school put in support to try and address this? Have they considered a multidisciplinary assessment involving external agencies and services?

Special educational needs

Schools must not exclude children simply because they have SEN. If your child does not have identified SEN, has this ever been considered? It may be something that you have already raised with the school.

How do your child's special educational needs affect their behaviour?

Has the school followed its SEN policy?

Was your child receiving the support they should have been? For example, if the EHC plan says your child must have one to one support at playtimes and this wasn't forthcoming, was the incident a result of the lack of support? Has an early interim review of the EHC plan been suggested by the school? An interim review could look at putting in additional support or identifying an alternative placement?

Discrimination

Was the exclusion affected by something like race, gender, disability, sexual orientation?

If your child has a disability, was the behaviour they are being punished for a direct consequence of their disability?

Were there reasonable adjustments the school could have made to avoid the incident? Give examples of what they could have done differently.

More information is published in the Technical guidance for schools from the Equality and Human Rights Commission.

Proportionate

You may think the punishment is too severe for what your child did. Have a look at the school’s behaviour policy. Is there a scale of punishments related to the seriousness of the offence? What alternatives might have been available?

The governors' meeting

This section explains how the governors' meeting will be run.

Who will be there?

the panel of Governors. There must be at least three and none of them should have any involvement in the case that might lead them to favour one side above another. That could be for example if one of the panel were related to the alleged victim.

a Clerk to take notes and advise on procedure. It is normal practice to have a clerk but is not a legal requirement.

The following people must be invited to the meeting:

the headteacher who will explain the school’s case for excluding the child

parents. You must be allowed to bring a friend or representative to support you at the meeting if you wish

a representative of the local authority must be invited and may make representations. They may not always attend, particularly for shorter exclusions.

If the school is an Academy you may ask for a local authority representative to be invited to the meeting. They will not be invited if you do not ask for it and governors will need to agree if they can make representations or just observe the meeting.

Other people who may attend:

witnesses. Consider whether there are any witnesses who could help your case. You could ask for a character witness to be there to present your child in a positive light

your child – should be encouraged and supported to attend if they wish. See further under A fair hearing below

When the governors send you the papers they should include a list of everyone who will be present at the meeting.

Time and date

The governors must meet within 15 school days after they have been informed about the exclusion. They must try to arrange the meeting at a time that is convenient to everyone.

Papers

The governors should ask for written material to be sent in before the meeting. That would include witness statements and information from the school about a child’s SEN.

They should try to circulate the papers at least five days before the meeting so you have a chance to read them.

If any new papers are brought up at the hearing, ask for a short break in order to read them

A fair hearing

The governors should not discuss the exclusion with any of the parties outside the meeting. That means that they shouldn’t have a private meeting with the head teacher about it without you there.

Parents may be accompanied by a friend or representative. Think about what will help you and who can go with you. This could be a personal friend or a family member. It can be helpful to have another person to take notes to leave you to concentrate on presenting your case. There may also be community organisations that can support you. If your child has SEN, contact your local Special Educational Needs and Disability Information Advice Support Service (SENDIASS). Their contact details will be on the local authority website.

If you have a disability, the governors must take steps to make sure you are not put at a disadvantage because of this. You may want to ask for an accessible venue or materials in alternative formats or even a bit of extra time to present your case.

All parties should be supported to participate and have their views heard. Make sure you ask if you need any other support such as an interpreter.

Your child’s views are really important and they should be encouraged to go to the meeting if possible. They could also be supported by being allowed to bring a friend or given information in a way that they can understand.

Think about the best way for your child to be involved. Particularly for younger children, it may be upsetting or confusing for them to attend the whole meeting. In this case it may be better for them to come to part of the meeting to give their views or an apology and then leave.

What will happen at the hearing?

The order of the hearing is not set out in guidance. A typical order of proceedings might be:

the chair introduces everyone and explains what will happen

the head gives the school’s case for excluding the child

the parent puts their case

opportunities for all parties to ask questions

summing up by the head and the parents

The parents and the head will then be asked to leave, as the governors must make the decision on their own. A clerk may stay with them to help by referring to notes of the meeting.

The governors’ decision

The governors must decide whether to reinstate your child in school. When making their decision, they must:

consider the interests and circumstances of the excluded pupil

have regard to the interests of other pupils and people working at the school

They will look at the facts on balance of probabilities and consider whether the head’s decision was lawful, reasonable and procedurally fair.

Minutes should be taken of the meeting as a record of the evidence that was taken into account.

The governors have two options - they can either:

decide not to reinstate your child in school or

direct reinstatement of your child immediately or on a particular date

If reinstatement is not practical because you do not want your child to go back to the school, the governors must still consider whether the head teacher’s decision was lawful, reasonable and procedurally fair.

After the meeting

The governors should log the outcome on the child’s school record along with copies of the relevant papers

The governors must let you know the outcome and the reasons for their decision in writing without delay. This must be written in plain english that you can understand.

If they decide not to reinstate your child in school the letter must also tell you:

the fact that it is a permanent exclusion

your right to ask for the decision to be reviewed by an IRP

timescales for applying for an IRP

your right to ask for an SEN expert at the IRP

your right to be represented

additional rights of to make a claim in discrimination cases.

If your child has a disability which affected the exclusion and you feel that the governors did not take this into account, you may make a disability discrimination claim to SEND. See ACE’s booklet on Disability Discriminationfor more details.

Discrimination Claims

Discrimination and the Equality Act

The Equality Act 2010 covers discrimination based on a range of 'protected characteristics'. For pupils in school these are disability, race, sex, religion or belief, pregnancy or maternity, sexual orientation or gender reassignment.

Exclusion from school is specifically covered by the Act. This does not mean that a school cannot exclude a pupil with a protected characteristic, but they must not do it just because for instance the child has a disability or is from a particular racial group.

Schools must also make sure that their policies such as the behaviour policy or uniform policy do not unfairly disadvantage pupils with protected characteristics.

Disabled pupils must also not be discriminated against because of behaviour connected to their disability unless there is a very good reason for it. For example, a child with autism who is very literal in what she says should not be treated in the same way as another child who is deliberately rude to a teacher.

Schools must also make ‘reasonable adjustments’ to the way they do things in order to avoid disabled pupils being put at a disadvantage.

You can make a claim to SEND as well as or instead of going to the Independent Review Panel. SEND’s powers are different from those of the IRP.

SEND will look at the disability aspects of the exclusion afresh. This is not just a review of the governing body decision.

SEND has the power to reinstate your child, even if their name has already been removed from the school roll.

You must lodge your claim within 6 months of the exclusion.

The Independent Review Panel

The IRP’s role is to review the decision of the governing body to check that it was properly made. The IRP cannot reinstate a child. It can only recommend or direct the governing body to reconsider the exclusion. The rules around IRPs are highly complex and this is just a summary. For full details go to the Government guidance.

Asking for a review

The letter you get from the governors will tell you who to write to in order to ask for an independent review panel meeting.

You have 15 school days from the date of the letter to ask for a review. It is important to send in your response in good time, as if you miss the deadline your application will be rejected.

At the same time you can ask for:

attendance of an SEN expert if you think SEN are relevant to your child’s exclusion

attendance of a local authority representative. If your child's school is an Academy, a representative of the LA will only be invited if you ask for it.

The IRP meeting must take place within 15 school days of your application being received. The meeting may be adjourned if necessary.

The IRP meeting

Who will be there?

the Panel members. The panel will be made up of 3 or 5 members. There are strict rules about who can and can’t be on a panel. The panel members must be independent and must not appear to be biased in any way.

the clerk – it is good practice to have a clerk but this is not a legal requirement. The clerk should not be the same as the clerk to the governing body meeting

the headteacher

someone from the governing body

LA rep – a representative will be invited if your child is at a maintained school. For Academies you need to ask specifically and their role may be limited to observing

SEN expert if you have requested this.

excluded child – your child must be allowed to attend and encouraged to participate. If they don’t attend, they can put their views forward in writing or through a representative.

witnesses – may be present but it is more usual to have written statements if the witnesses are pupils at the school

the alleged victim also has a right to be present or put in written views

Think about whether there is anyone you want to be there as a witness. You can ask for a character witness to attend if the panel agrees.

Representation

The head and the governors have right to be represented. They may be represented by lawyers but this is not often the case. You as parents also have a right to be represented, including by a lawyer. You would need to arrange this yourself. You can also take a friend.

Papers

As with the governors meeting, the clerk should try to make sure that the papers are sent to all parties 5 school days before the review.

You should also be told who will be at the meeting and what their role will be.

Evidence

The panel will take into account all evidence that was before the governing body. They can look at new evidence but they may be limited in how they can use it.

It is particularly important to flag up any evidence that you put forward that you think the governing body ignored or evidence like school policies that the governing body ought to have been aware of but weren’t.

There may also be completely new evidence that has come to light since the governors’ meeting. This could be something like a new diagnosis of a particular disability affecting your child. The panel can look at completely new evidence when deciding whether to recommend reconsideration by the governing body, but not when deciding whether to quash the decision

A fair hearing

The principles relating to fair hearings for the governing body meeting also apply to the IRP hearing.

You have a right to have your views properly heard and guidance also states that the review "should be conducted in an accessible, non-threatening and non-adversarial manner".

The meeting is likely to follow a similar order to the governing body meeting. The chair should explain the procedure to you at the beginning of the hearing.